Commentary: The Death Penalty and Elected Judges

Now retired U.S. Supreme Court Justice Sandra Day O’Connor wrote this in her separate concurrence in the landmark case of Republican Party of Minnesota v. White, the 2002 decision that changed the landscape in judicial elections by giving judges and judicial candidates more free speech (and some say unwisely so):

“ I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest.

“We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects… Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.”

The Supreme Court of Ohio released its decision in State v. Thompson, Slip Opinion No. 2014-Ohio-4751, on October 29, 2014, six days before the election.   Thompson was a death penalty case. And not just any death penalty case, but one which involved the killing of a police officer in the line of duty. The justices were unanimous in upholding the conviction, but split 4-3 on the sentence.  Justices French, Kennedy, O’Donnell, and Chief Justice O’Connor voted to affirm the death penalty imposed in the case.  Justice French wrote the opinion for the court.  Justices French and Kennedy happened to be running for election; Justice French in what had been perceived to be a close race.

Any coincidence in the timing of the release of this decision? That is an unanswerable question from the outside looking in, but it was enough for the Ohio Public Defender’s office to file a request for the recusal of Justices Kennedy and French from participating in the motion for reconsideration and re-hearing in the case.  The basis of the request was the appearance of a law-and-order bias. The affidavit in support of the request noted that political ads for both justices emphasized their “law and order” and “tough on crime” stances:

“Justices French and Kennedy are human, and they were facing reelection at the time they rendered the deciding votes in a controversial case. Even if they had the ability ‘to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it,’ (quoting Sandra Day O’Connor) it is still the case that public confidence in their impartiality is undermined by timing of the Thompson opinion against the backdrop of repeated studies demonstrating that elections affect judges’ impartiality.

“The commercials for both campaigns demonstrated a strategy that would be undermined by granting relief to a man who had killed a police officer,” the affidavit stated, noting that even if this never crossed a justice’s mind, it could appear to the public that it did.

When a recusal request is filed against a justice, under S.Ct. Prac. R. 4.04(B), the justice must file a response with the Clerk of the Supreme Court as soon as practicable. Both Justices Kennedy and French responded promptly and succinctly—neither would recuse. Justice Kennedy wrote, “finding the request without merit, I will continue to participate in the case.” Justice French wrote, “having reviewed the request, and having determined that no grounds for recusal exist, I decline appellant’s request.”

Judicial elections, speech, and public perception of bias of course cuts both ways.  Justice Paul Pfeifer upset many people when he announced at his final swearing-in ceremony in January of 2011 that he thought the time had come for Ohio to abolish the death penalty, and asked Gov. Kasich to commute all existing death sentences to life without the possibility of parole.  That caused the prosecution to try and kick Pfeifer off an upcoming death penalty case, State v. White, 2009-1661, also a case in which a police officer was killed in the line of duty. Pfeifer declined to recuse himself, and voted against imposing the death penalty in the required re-sentencing in the case.   Since, he generally hasn’t taken per se anti-death penalty stances, but has more often found that mitigating factors outweighed aggravating circumstances.

And then there is Justice Bill O’Neill. When O’Neill joined the Court January 2, 2013, he wasted no time in making clear his complete and total opposition to the death penalty.  On January 25, 2013, O’Neill dissented from the order of execution in the case of State v. Wogenstahl, 2013-Ohio-164.   He wrote,

“While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold. I must respectfully dissent.”

About a month later, he dissented, without opinion, from the order of execution in State v. Van Hook.   And since then, he has per se dissented from every death penalty case he has sat on, sometimes with an opinion, sometimes not.

Here are a couple of samples of O’Neill’s dissents:

From State v. Jackson, 2014-Ohio-370:

“Once again, I am compelled to dissent from this court’s affirmance of a death sentence. Here, the court places its imprimatur on the execution of an intellectually disabled man, despite the fact that the only evidence presented strongly tends to establish that the victim’s injury and death were unintended… I do not expect that the court will adopt my view that the death penalty is cruel and unusual and therefore constitutionally forbidden anytime soon. See, e.g., State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900, ¶ 2 (O’Neill, J., dissenting). But I do believe that at some point in the near future this court will be forced to recognize that Ohio’s death penalty reaches too far, to too many crimes and to too many criminals…I remain even more troubled by this court’s refusal to truly engage in an independent reweighing of death sentences… This is a terrible case, but it should not be a death-penalty case. I dissent.”

From State v. Kirkland, 2014-Ohio-1966:

“As a justice and as a citizen, it is truly difficult in this case to separate personal outrage from clinical constitutional analysis. The latter, however, is required by my oath of office. Anthony Kirkland’s actions were monstrous—he must be punished and society must be vigilantly protected from him. He deserves nothing less than life in prison without possibility of release, and the horror of his crimes certainly makes it easy to suggest that death is the only fit punishment for him. But because the death penalty “is inherently both cruel and unusual,” State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900, ¶ 2 (O’Neill, J., dissenting), I cannot accept that easy suggestion…I have stated my belief that capital punishment itself is unconstitutional; with today’s decision, the court plainly demonstrates that Ohio’s system of imposing and reviewing death sentences is unconstitutional as well. Accordingly, I dissent.

And in Thompson, O’Neill wrote, “The weighing of aggravating factors against mitigating factors is what R.C. 2929.05 requires, and absent a real independent weighing of a death sentence, there is no way to reasonably argue that the process that resulted in that sentence comports with due process. The majority’s failure to seriously engage in the weighing process provides yet another reason why, in my opinion, Ohio’s system of imposing and reviewing death sentences is unconstitutional. “

Given O’Neill’s per se anti-death penalty approach, it is surprising the prosecution has not sought his recusal.

After Justices O’Neill and Pfeifer, Justice Lanzinger has been the most likely to find mitigating factors outweigh aggravating circumstances, as she did in the Thompson case. Interestingly, Justices Lanzinger, Pfeifer, and O’Neill cannot run the next time he or she is up, because of the constitutional age limits for judges. While I think all three would take the same positions regardless, that specter of voter disapproval Justice Sandra Day O’Connor talked about is always hovering, as long we continue to elect our judges in Ohio.   In my judicial extern course this semester, we have watched many vile ads from judicial races around the country.  As my students can attest, it is all too easy to turn a principled vote against the death penalty into a devastating, misleading thirty second negative ad, and use it to unseat a sitting justice.  Maybe this is one reason Ohio’s Chief Justice Maureen O’Connor has recently changed her mind about electing  judges in Ohio.


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